Summary: The Council failed to ensure Y received a suitable education when he was unable to attend school. The Council has agreed to remedy the injustice this caused.

The complaint

1. Mrs X complained the Council failed to deliver alternative provision for her son, Y. She said that Y has been unable to attend school full time since October 2022 due to his poor mental health. Mrs X said that after Y stopped attending school at all in January, she requested the Council arrange alternative provision. She said the Council said it was the school’s responsibility.
2. Mrs X said that lack of alternative provision has caused Y to miss out on his education and his mental health has deteriorated.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

7. I have not investigated matters surrounding Y’s EHC Plan as Mrs X appealed the Council’s decision not to assess Y. In May 2023, the Council overturned its decision and agreed to assess Y.

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How I considered this complaint

8. I considered Mrs X’s complaint and the Council’s response to Mrs X and to my enquiries.
9. I have also considered the relevant legislation, guidance and the Local Government and Social Care Ombudsman’s focus report ‘Out of School, out of sight?’ (August 2023).
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislation

11. The Council has a duty, outlined below, to arrange suitable education for children who would not otherwise receive suitable education. The Council is – in effect – a “safety net”.
12. The Education Act 1996 says every council shall “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
13. The Government has issued statutory guidance which Councils must follow unless they have good reason. (Ensuring a good education for children who cannot attend school because of health needs, issued by the Department for Education in January 2013)
14. The Local Government Ombudsman has also issued guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of sight? Ensuring children out of school a good education, published in August 2023)
15. Government guidance says Councils must work closely with schools to identify children who need the Council to make alternative arrangements for their education. Councils must consider the individual circumstances of each particular child and be able to demonstrate how they made their decisions.
16. In reaching a decision on whether a child is medically or otherwise unable to attend school, we expect councils to act quickly and (where necessary) consult the relevant professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of their evidence. If – having considered all relevant evidence – a council decides that the school place remains available and accessible to the child, we would expect this to be clearly documented, and communicated promptly to the parents.

What happened

17. Mrs X’s son, Y was a pupil in year 6 at a mainstream primary school. In October 2022, Y’s parents requested the Council carry out an Educational, Health and Care Assessment. Y had been added to the SEN register and his parents were concerned that Y was struggling and displaying signs of anxiety whilst at school. The school put Y on a part-time timetable and put provision in place to support Y and to aid his transition to secondary school.
18. In December 2022, Mrs X raised concerns with the Council. She said that although Y was attending school, he was not receiving an academic education or the support he needed. The same month, the Council refused Mrs X’s request for an EHC Plan assessment.
19. By January 2023, Mrs X told the Council that Y was refusing to go to school due to his anxiety.

Request for alternative provision

20. In February 2023, Mrs X requested that the Council offer alternative provision for Y. Mrs X said the Council did not respond. She requested again in March and submitted a complaint to the Council.
21. The Council said that without an EHC Plan, it would not provide additional funding to the school, alternative provision or a tutor. It said that Mrs X needed to speak to the school as they are responsible for Y’s education.
22. Mrs X appealed to the SEND Tribunal about the Council’s decision not to assess Y for an EHC Plan.

Team Around the Family (TAF)

23. In April, the school held a TAF meeting. Mrs X said that Y was feeling less stressed and the work he was doing with the educational psychologist was helping him make progress. They discussed the robot provided by school and the one hour a week phone call with a teaching assistant (TA). Mrs X said that Y struggled to engage with the robot and the TA call was mainly a wellbeing check.
24. They discussed school attendance and that there was not enough medical evidence to mark Y as ‘ill’. The school said it would mark Y’s attendance in a way to show that the family is working with the school and Council. The TAF agreed some key outcomes from the meeting. This included:
• a referral to Child and Adolescent Mental Health Services (CAMHS),
• access to virtual school,
• regular home visits from school staff to build relationships at secondary school
• joining in with forest school activities at school.
25. In May, the school made a referral to CAMHS due to their concerns about the decline in Y’s mental health. CAMHS assessed Y in June and offered him sessions to manage his anxiety.

EHC needs assessment.

26. In May, the Council agreed to carry out an EHC needs assessment for Y, and the appeal was withdrawn.
27. Mrs X contacted the Council in August. She complained again that the Council was not delivering alternative provision for Y and that it had not issued Y’s Draft EHC Plan.
28. The Council issued Y’s Draft EHC Plan in August 2023. Mrs X then brought her complaint to the Ombudsman.

Update

29. Since Mrs X brought her complaint the Ombudsman, she has been in frequent contact with the Council. As of the end of 2023, the Council was still not delivering alternative provision and had not issued Y’s Final EHC Plan.

My findings

30. The Section 19 duty requires councils to satisfy itself that a child is receiving a suitable education. I have seen no evidence that the Council did this. We would have expected the Council to assess Y as soon as it became aware that he was not attending school. It should have considered his needs, what education he could cope with and what he was receiving from the school. It could then reach a properly considered ‘Section 19 decision’. The Council did not do this. This was fault.
31. The Council argued that without an EHC Plan, it could not determine Y’s needs and could not therefore provide suitable alternative provision. A child does not need an EHC Plan for a council to determine what alternative provision would be suitable. This was fault.
32. The Council’s failure to make a properly considered Section 19 decision meant that Y has only received very limited provision since January 2023. The school provided an hour a week of alternative provision, but this was not a suitable education for Y.
33. Y missed out on three terms of suitable education in 2023: spring, summer and autumn terms. This included his transfer from primary to secondary school.
34. The Council has agreed to remedy for the missed education in line with the Ombudsman’s Guidance on Remedies.
35. The Council has also agreed to make a section 19 decision for Y as a priority.

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Agreed action

36. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X for failing to properly consider its Section 19 duty which led to Y missing out on suitable education.
2. Pay Mrs X £6000 for the three terms of missed education.
3. Make a Section 19 decision to determine what alternative provision Y needs.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I have completed my investigation. I have found fault with the Council for failing to ensure that Y received a suitable education when he was out of school due to his mental health.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman